United States District Court, E.D. Pennsylvania
J. PAPPERT, J.
se Plaintiff Marlon Brandon filed this lawsuit pursuant
to Title VII of the Civil Rights Act of 1964, against Tucker
House, his former employer. (ECF No. 2.) He has also moved to
proceed in forma pauperis and for appointment of
counsel. (ECF Nos. 1 & 3.) For the following reasons, the
Court will grant Brandon leave to proceed in forma
pauperis, dismiss his Complaint as time-barred with
leave to amend, and deny his Motion to Appoint Counsel at
used this Court's form complaint. To provide the factual
basis for his claims, Brandon attached to his Complaint a
charge of discrimination that he filed with the Equal
Employment Opportunity Commission. (See Compl. ECF
No. 2 at 3 & 7.)He claims to have been subjected to sexual
harassment and/or discrimination because of his gender in
connection with an incident involving a nursing supervisor
that led to his removal from the work schedule.
(Id.) Brandon also alleges that he was terminated
after he complained about the incident to Human Resources.
(Id.) He contends that he was terminated “as a
direct consequence of rebuffing [the nursing
supervisor's] sexual advances.” (Id. at
states that he received a Notice of Right to Sue Letter from
the EEOC on September 3, 2019. (Id. at 4 & 6.) A
copy of the cover letter from the EEOC, which is attached to
the Complaint, states that issuance of the notice would
“enable [Brandon] to file suit in U.S. District Court
within 90 days of [his] receipt of [the] Notice if [he]
wish[ed] to pursue this matter further.” (Id.
at 6.) Brandon filed this lawsuit on December 3, 2019.
Court will grant Brandon leave to proceed in forma
pauperis because it appears that he is incapable of
paying the fees to commence this civil action. Accordingly,
28 U.S.C. § 1915(e)(2)(B)(ii) applies, which requires
the Court to dismiss the Complaint if it fails to state a
claim. Whether a complaint fails to state a claim under
§ 1915(e)(2)(B)(ii) is governed by the same standard
applicable to motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6), see Tourscher v. McCullough, 184
F.3d 236, 240 (3d Cir. 1999), which requires the Court to
determine whether the complaint contains “sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted).
Conclusory allegations do not suffice. Id.
plausibility paradigm announced in [Bell Atl. Corp.
v.] Twombly[, 550 U.S. 544 (2007), ] applies
with equal force to analyzing the adequacy of claims of
employment discrimination.” Fowler v. UMPC
Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (quotations
omitted). Additionally, the Court may dismiss claims based on
an affirmative defense if the affirmative defense is obvious
from the face of the pleading. See Fogle v. Pierson,
435 F.3d 1252, 1258 (10th Cir. 2006); cf. Ball v.
Famiglio, 726 F.3d 448, 459 (3d Cir. 2013),
abrogated on other grounds by, Coleman v.
Tollefson, 135 S.Ct. 1759, 1763 (2015). As Brandon is
proceeding pro se, the Court construes his
allegations liberally. Higgs v. Att'y Gen., 655
F.3d 333, 339 (3d Cir. 2011).
VII prohibits employment discrimination based on sex. See
E.E.O.C. v. Allstate Ins. Co., 778 F.3d 444, 448-49 (3d
Cir. 2015) (citing 42 U.S.C. § 2000e-2(a)). Title VII
also prohibits an employer from retaliating against an
employee for opposing any act made unlawful by the employment
discrimination statutes, or because he made a charge,
testified, assisted, or participated in an investigation,
proceeding or hearing under the employment discrimination
statutes. 42 U.S.C. § 2000e-3. Before filing suit in
federal court under Title VII, a plaintiff is required to
exhaust administrative remedies by filing a charge of
discrimination with the EEOC, see Mandel v. M&Q
Packaging Corp., 706 F.3d 157, 165 (3d Cir. 2013),
although that is not a jurisdictional prerequisite. See
Fort Bend Cty., Texas v. Davis, 139 S.Ct. 1843, 1846
plaintiff filing a civil action under Title VII must file
suit within ninety days of receiving a right-to-sue letter
from the EEOC. See 42 U.S.C. § 2000e-5(f)(1).
The time limitations set forth in Title VII are not
jurisdictional and are subject to equitable tolling.
Oshiver v. Levin, Fishbein, Sedran & Berman, 38
F.3d 1380, 1387 (3d Cir. 1994), abrogation on other
grounds recognized in Rotkiske v. Klemm, 890 F.3d 422,
427-28 (3d Cir. 2018), cert. granted, 139 S.Ct. 1259
(2019). “There are three principal situations in which
equitable tolling is appropriate: (1) where the defendant has
actively misled the plaintiff respecting the plaintiff's
cause of action, and that deception causes non-compliance
with an applicable limitations provision; (2) where the
plaintiff in some extraordinary way has been prevented from
asserting his rights; or (3) where the plaintiff has timely
asserted his or her rights mistakenly in the wrong
forum.” Podobnik v. U.S. Postal Serv., 409
F.3d 584, 591 (3d Cir. 2005), abrogation on other grounds
recognized in Rotkiske, 890 F.3d at 427-28. Equitable
tolling should be applied sparingly, id., and may
not be based on excusable neglect. See Scary v.
Philadelphia Gas Works, 202 F.R.D. 148, 152 (E.D. Pa.
to the Complaint, Brandon received a notice of right to sue
letter from the EEOC on September 3, 2019. (Compl. ECF No. 2
at 4.) He was thus required to file his Complaint within
ninety days, by December 2, 2019; he did not do so until
December 3. No. basis for tolling is apparent from the face
of the Complaint. The Court must dismiss the Complaint if it
is time-barred on its face, as is the case here. See
Rockmore v. Harrisburg Prop. Serv., 501 Fed.Appx. 161,
164 (3d Cir. 2012) (per curiam) (“We may be sympathetic
with Rockmore's situation, but we are bound by the strict
procedural requirements established by Congress, which are
not to be disregarded by courts out of a vague sympathy for
particular litigants.” (internal quotations omitted)).
However, in light of Brandon's pro se status,
the Court will give him leave to file an amended complaint in
event that he can articulate a basis for equitable tolling.
foregoing reasons, the Court will grant Brandon leave to
proceed in forma pauperis and dismiss his Complaint
as time-barred without prejudice to amendment. Brandon's
Motion for Appointment of Attorney will be denied without
prejudice at this time. See Tabron v. Grace, 6 F.3d
147, 155 (3d Cir. 1993) (in determining whether appointment
of counsel is appropriate, the Court ...